1 NONDISCLOSURE AGREEMENT This nondisclosure Agreement is entered into effective ________ [date] , by and among Snow Factory, Inc., a California corp oration, with its principal o ffices at 10572 Calle Ste 132, Los Alamitos, CA 90720 ("Company") and ____________________________ (“Prospective Investor”).
WHEREAS, the Company possesses certain propr ietary technology, proprie tary information, business opportunity information and other information pertaining to various as pects of the business of Snow Facotry license (”Business Information”); and
WHEREAS, the Prospective Invest or are interested in examining the Business Information to determine whether they, or either of them, desire s to enter into a long-te rm business relationship with the Company; and
WHEREAS, the Company desires to protect the Business Informati on from further disclosure and wishes that information to be treated by the Prospective Investor as confidential information belonging to the Company; and
WHEREAS, in order to indu ce the Company to submit its Business Information to the Prospective Investor for analysis, the Prospective Investor are willing to agree to treat all such information as confidential and be longing solely to the Company;
NOW, THEREFORE, in consideration of the covena nts contained in this Agreement, the parties agree as follows:
1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include all information disc losed by the Company to Prospective Investor, regardless whether such information is marked or designated “Confidential.” 2. Duty of Confidentiality. (a) The Prospective Investor shall utilize their best efforts to maintain and preserve the confidentiality of the C onfidential Information a nd shall not, without th e prior written consent of the Company, disclose Confidential Informati on to third parties, or manufacture, distribute, deliver, use or sell products embodying any such information. (b) The Prospective Investor shall use the same degree of care to avoid disclosure of Confidential Information as they employ with re spect to their own information which they do not desire to disclose, bu t at all times shall use at least reasonable care. (c) The confidentiality obligations imposed in this Agreement shall not apply to material or information if: (i) The material or information is in the public domain at th e time of disclosure through no wrongful act of either Pros pective Investor; or 2 (ii) The material or information is generally know n to either Prospective Investor at the time of disclosure without obligation concerning its confidentiality; or (iii) The material or information is furnis hed to a third party by the Company under no obligation of confidentiality.
3. Term. The terms and conditions of this Agreement shall apply to all Confidential Information disclosed by the Company to Pros pective Investor. The nondisclosure provisions of this Agreement shall survive the terminati on of this Agreement and the receiving party’s duty to hold Confidential Info rmation in confidence shall re main in effect until the Confidential Information no longer qualifies as a trade secret or until the disclosing party sends the receiving party written notice releasing the receiving party from this Agreement, whichever occurs first.
4. Return of Materials. All documents delivered by the Company pursuant to this Agreement shall remain the property of the Company and the documents shall be promptly returned to the Company upon written request along with a ll copies, together with all copies and duplicates of any documents.
5. Relationships . Nothing contained in this Agreement shall be deemed to constitute either party a partner, joint venturer or empl oyee of the other party for any purpose.
6. Remedies. Both parties acknowledge that th e Confidential Information to be disclosed hereunder is of a unique and valuable characte r, and that the unauthor ized dissemination of the Confidential Information would destroy or dimi nish the value of such Information. It is understood and agree that monetary damages w ill not be a sufficient remedy for any breach of this Agreement by the receiv ing party, and that the disclosi ng party shall be entitled to specific performance and/or injunctive relief as a remedy for any such breach of this Agreement, but said remedies shall be in additio n to all other remedies available at law or in equity.
7. Severability. The provisions of this Agreement are severabl e, and if any one or more provisions may be determined to be unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
8. No License. It is understood that nothing contai ned in this Agreement shall be construed as granting or conferring any licen se, express or implied, to any party in connection with the Confidential Information.
9. Assignment. All rights accruing to the Compa ny under the terms of this Agreement are assignable.
10. Governing Law. This Agreement shall be cons trued under and according to the laws of the State of California. 3
11. Counterparts. This Agreement ma y be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
12. Title and Subtitles. The titles a nd subtitles used in this Agreement are used for convenience only and are not to be considered in cons truing or interpreting this Agreement.
13. Amendment and Waiver. No amendment, modifi cation, supplement or waiver of this Agreement or any of its provisions shall be bi nding on the parties unless made in writing and duly executed by the Company, the Prospective Inve stor. A failure of any party to enforce at any time any of the provisions of this Agreem ent or to require at any time performance by another party of any provision of this Agreement, shall in no way be construed as a waiver of those provisions.
14. Attorney fees. In the event litigation shall be instituted to enforce any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and expenses incurred in the litigation in addition to any other recovery to which that party may be legally entitled.